Hassam and Hassam
[2014] FamCA 759
•12 September 2014
FAMILY COURT OF AUSTRALIA
| HASSAM & HASSAM | [2014] FamCA 759 |
| FAMILY LAW – CHILDREN – Best interests – Magellan list – With whom a child lives – Allegations of sexual abuse and family violence – Where there is one child of the relationship who is 10 years of age – Where allegations of sexual abuse have been made against the father – Where allegations of sexual abuse have been made against the step father – Where there has been family violence perpetrated by the father against the mother – Where the child has made several disclosures to child protection authorities and treating practitioners about the father – Where sexual abuse allegations against the step father are not substantiated – Where sexual abuse allegations against the father have been substantiated by child protection authorities – Whether it is in the child’s best interests to spend time with her father – Where the court found that the child would be exposed to an unacceptable risk of sexual abuse if she were to spend time with the father – Order for the child to live with the mother and the mother to have sole parental responsibility for her – Order for no contact or direct communication between the father and child – Order restraining the father from approaching within 100 metres of the mother or child. |
| Family Law Act 1975 (Cth) – Part VII, s 60B, s 60CA, s 60CC, s 61C, s 61DA(1), s 61DA(2), s 61DA(4), s 65AA, s 65DAA(1), s 65DAA(2), s 65DAA(3) |
| B and B (1993) FLC 92-357 Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 M v M (1988) FLC 91-979 MRR v GR (2010) 42 Fam LR 531 |
| APPLICANT: | Ms Hassam |
| RESPONDENT: | Mr Hassam |
| INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate & Associates |
| FILE NUMBER: | SYC | 7877 | of | 2009 |
| DATE DELIVERED: | 12 September 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 28, 29, 30 & 31 October and 1 November 2013 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Druitt |
| SOLICITOR FOR THE APPLICANT: | Turner Freeman Lawyers |
| FOR THE RESPONDENT: | Mr Hassam in person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate & Associates |
Orders
The following parenting orders are made in relation to Y Hassam born … 2004 (“the child”).
All previous orders are discharged.
Parental responsibility
The mother shall have sole parental responsibility for the child.
Live with
The child shall live with her mother.
Spend time with
The child shall spend no time with her father.
Communication
The father shall be permitted to send cards to the child, care of her maternal grandparents, on her birthdays and special religious occasions such as Eid and Christmas.
The mother shall ensure that the child receives such cards.
Otherwise the father shall have no communication with the child.
Restraints
The father be restrained from approaching within 100 metres of the child or her mother.
The father shall not seek to discover the residential address, school or location of the child or her mother and shall not attend at any residential address, school or location known to be frequented by the child or her mother.
School reports
The mother shall forward to the father, care of his mother, a redacted copy of the child’s school reports, within 14 days of receipt.
Removal from Australia
The child is restrained from being removed from Australia.
All officers of the Australian Federal Police are to assist in the implementation of these orders.
The Australian Federal Police shall forthwith enter details of the child on the Watch List at all Australian international arrival and departure points including under the names of Y Hassam, …, …, … or any combination of these names born … 2004.
Change of name
The mother shall do all things and sign all documents necessary to ensure that the child continues to be known by her surname Hassam.
Costs of Independent Child Lawyer
That within 30 days the father pay to Legal Aid New South Wales the sum of $2000 being the Court’s assessment of the appropriate amount of the Independent Child Lawyer’s costs to be paid by him.
IT IS NOTED that publication of this judgment by this Court under the pseudonym HASSAM & HASSAM has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 7877 of 2009
| Ms Hassam |
Applicant
And
| Mr Hassam |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
The parties in these proceedings are Ms Hassam and Mr Hassam. For convenience I shall refer to them as “the mother” and “the father”. They are in dispute about the parenting arrangements for their daughter Y Hassam (“the child”), born in 2004, now 10 years of age.
The case is complex particularly because there are allegations by each parent to the effect that the child has been sexually abused. The case is included in the Magellan list of cases.
Applications
The mother seeks orders to the following effect:
·All prior parenting orders are discharged;
·The mother have sole responsibility for the child;
·The child live with the mother;
·The child spend no time with her father and have no communication with him;
·The father be restrained from approaching within 100 metres of either the child or the mother;
·The father be restrained from endeavouring to ascertain the residential address, school or location of the said child and the mother and from presenting himself at any such place or other location known to be frequented by the mother and/or the child;
·The mother forward to the father a redacted copy of the child’s school reports and any school photos within 14 days of receipt;
·The father be restrained from removing or attempting to remove the child from Australia; and
·The Marshal and relevant police officers assist in implementing these orders and enter the child’s details including details of the following name for the child, Y Hassam born … 2004, also known as … or … (or a combination of such names), in the Airport Watch List.
The independent child lawyer (“ICL”) supports the form of orders sought by the mother with the following additions:
·That the father be permitted to send cards to the child, care of her maternal grandparents, on her birthday and on special religious occasions like Eid and Christmas; and
·That the mother ensure that the child receives such cards.
Prior to the last day of the trial, the father was seeking orders to the effect that the child spend time with him for what would amount to substantial and significant time.
During his final submissions the father indicated that he was seeking whatever contact between the child and himself the Court would consider to be reasonable. He also sought that both he and the mother be restrained from removing the child from Australia, an order to the effect that the mother be restrained from changing the child’s surname and that he be provided with a copy of the child’s school records, and photos. The father also indicated that he would prefer day only contact to supervised contact and that the Court make an order that upon the child attaining 14 years of age, contact between her and him be increased. He also sought an order to the effect that his mother and members of his family be permitted to be present during any daytime contact between himself and the child.
Issues (from ICL’s outline)
The issues raised in the proceedings include the following.
Does the father pose an unacceptable risk to the child – risk of sexual harm and/or exposure to violence?
Is the child exposed to any harm by the mother, as claimed by the father?
If there is an unacceptable risk, should any orders for time be made, and if so on what terms?
If there is an unacceptable risk of harm by the father should there be orders for time with the child and the paternal family?
If there is no unacceptable risk, what orders should be made in respect of parental responsibility?
If there is no unacceptable risk what orders, if any, should be made for the child to spend time with the father?
Does either parent have capacity to facilitate a relationship between the child and the other parent, even absent of a finding of unacceptable risk?
I shall deal with these issues during the course of these Reasons.
Background
The background facts are as follows.
The father, 36 years of age and the mother, 34 years of age married in 2002.
As indicated above, the only child of their marriage, Y, was born in 2004. She is now 10 years of age.
The father alleged that on 2 April 2005 the mother whipped him with a power cable. A couple of days later the father claimed that the mother damaged his laptop computer. I shall refer to these matters again below.
On 12 April 2005 the parties had an argument at 3.00 am in relation to feeding the child. Another argument ensued at 11.00 pm that evening whereby the mother locked the father out of the house. The police attended the home at 12.50 am on 13 April 2005. Neither party made statements. The police did not take further action. I shall refer to these matters again below.
The father alleged that on 14 April 2005 the mother deliberately hit her head on the bedside table.
The father was charged with two counts of assault on 12 April 2005 and one of indecent assault on 17 April 2005. On 15 April 2005 the mother attended A Hospital for assessment of the injuries which she alleged she incurred on 12 April 2005.
The father alleged that in early May 2005 the mother hit the child across the face.
The father alleged that in mid May 2005 he was told by the mother that she took the child to a medical centre after the child fell off the kitchen bench top and hit her head on the floor.
On 30 June 2005 the parties separated on a final basis. There was a serious argument between the parties which culminated in the father pulling the mother off a rocking chair. The parties have presented very different accounts about this. The police were called and they arrested the father for common assault. I shall refer to this matter again below.
On 22 July 2005 an interim Apprehended Violence Order (“AVO”) issued against the father for the protection of the mother.
On 28 July 2005 the father pleaded guilty to committing common assault against the mother on 30 June 2005. No conviction was recorded and the father was placed on a good behaviour bond.
On 26 August 2005 the mother filed an Application for Final Orders in the then Parramatta Federal Magistrates Court seeking property orders and parenting orders for the child to live with her. The application proposed no order for time with the father.
In September 2005 the child commenced attending the X Child Care Centre.
On 26 September 2005 the parties attended a child dispute resolution conference
On 15 November 2005 the parties attended upon an Islamic cleric and obtained an Islamic divorce.
On 18 November 2005 interim consent orders were made for the child and father to have time at the maternal great grandparents’ home each Sunday for four hours, supervised by the maternal grandfather. This commenced on 20 November 2005. It was the first time the child had spent time with her father since separation on 30 June 2005.
On 22 November 2005 the charges concerning the alleged assaults in April 2005 against the father were dismissed at the Local Court.
On 12 December 2005 the father filed a response, seeking property and parenting orders. He filed an amended response on 31 March 2006 seeking orders for a shared care parenting arrangement.
In February 2006 the maternal grandfather ceased supervising the father's time with the child. There had been arguments between them during the visits.
Orders were made on 26 May 2006 by the Federal Magistrates Court for the child to live with the mother and spend graduated time with the father during daytime only, with overnights to commence from the time the child was approximately two years eight months of age. When she turned four years of age she was to spend alternate weekends with the father from Friday evening until Sunday evening, and from the commencement of school from after school Friday evening until before school Monday morning as well as Monday afternoons in intervening weeks. Provision was also made for block periods of time during the school holidays.
The parties became divorced in September 2006.
In 2007 the mother married Mr S. For convenience I shall refer to Mr S as “the step-father”. They have two young sons, G who was born in late 2007 and N who was born in early 2011.
On 2 December 2007 the father alleged that the child Y made disclosures of a sexual nature against the step-father. On 9 December 2007 the father spoke to the maternal grandfather about his allegations. The father alleged that on 16 December 2007 the child made further disclosures about the step-father, allegedly associating a banana with his penis. The Department of Community Services (“DOCS”) and the Joint Investigation Response Team (“JIRT”) became involved but ultimately took no further action. I shall refer to this matter in more detail below.
On 20 December 2007 the father discussed the child’s alleged disclosure about her step-father with Ms P at the X Child Care Centre., which the child was attending.
In 2008 the Director of the Child Care Centre wrote to the mother’s father expressing concern about the child’s behaviour particularly following time spent with the father. The child was described as day dreaming, lacking attentional skills, shutting out from reality, and being anxious and fidgety. With younger children she was said to be bossy, domineering and at times aggressive.
In 2009 the child commenced school at L School. The father complained that he was not consulted and was excluded from the child’s records.
In March 2009 the child was referred to a psychologist, Ms J by her general medical practitioner, Dr D, for behaviour management, learning difficulties and emotional management. The father alleged that he was not informed.
The mother alleged that in April 2009 the child told her and her step-father that she was required to suck her father’s finger. The mother reported this to DOCS who referred the allegation to JIRT. JIRT interviewed the child but took no further action. I shall refer to this again below.
The mother alleged that on 26 November 2009 the father attempted to remove the child from her school on a non-contact day.
The father filed contravention applications in the Federal Magistrates Court on 21 December 2009, 26 March 2010, 5 May 2010 and 31 August 2010.
On 23 December 2009 the father filed an Application in a Case.
On 9 April 2010 the mother removed the child from the L School and enrolled her in B School. The father alleged that he was not consulted.
On 20 September 2010 a Family Report was prepared by Ms M and released by the Court. Ms M made the following recommendations:
· The child remain at B School, and
· The parents undertake counselling and attend mediation to plan the child's education.
On 27 September 2010 the father's contravention applications (other than that filed 31 August 2010) were dismissed. The father filed an Application in a Case on 27 September 2010 seeking orders to the effect that the child live with her mother and spend what would amount to substantial and significant time with him. The father also sought orders to the effect that the child not be left alone with her step-father, that the mother not change the child’s surname and for telephone contact any evening from 4.00 pm to 7.00 pm for up to 10 minutes.
On 22 November 2010 the mother filed a Response to the father's Amended Application in a Case seeking that the orders of 26 May 2006 be varied so that the child would spend half of school holidays with her father, have telephone contact twice a week, have specific orders for Eid celebrations, that the father would supervise the child at all times, not leave her in the care of her paternal grandmother alone and inform the mother within 24 hours if the child became ill.
On 18 February 2011 the child said things which caused the mother to suspect that the child was again involved in sucking her father’s finger. The mother complained to the police and a provisional AVO issued for the child’s protection against the father.
On 25 March 2011 the child was interviewed by JIRT who concluded that there was no risk to the child.
On 28 March 2011 the father took the child to a Mr U, psychologist, and the father alleged that the child disclosed having been hit by her mother. I shall refer to this again below.
The mother alleged that on 11 April 2001 the child said to her in a distressed state that her father tells her to touch his “noo noo” which is how the child refers to his penis. The mother reported this to the police.
The mother alleged that on 13 April 2011 the child informed her that her father does “wee wee on my underwear”. I shall refer again to these matters below.
On 14 April 2011 the child was interviewed by JIRT officers. The child was referred to a sexual assault counsellor.
On 14 April 2011 a provisional AVO was issued against the father for the protection of the child. This restrained the father from approaching, contacting or phoning the child, from going within 200 metres of her residence and from approaching her school.
On 29 April 2011 the child began sexual assault counselling with Ms T.
On 24 May 2011 a final AVO for the child’s protection was made by the Local Court for 12 months.
On 7 June 2011 the mother filed a Notice of Child Abuse or Family Violence alleging that the father had sexually, verbally and emotionally abused the child.
On 17 November 2011 the proceedings were transferred by the Federal Magistrates Court to this Court.
On 25 January 2012 the mother filed an Initiating Application seeking final orders to the effect that the child live with her, that she spend time with her father on terms determined by the Court following investigation of abuse allegations and, that the father complete a parenting skills course and an anger management course.
On 7 February 2012 the father filed a Response seeking final orders to the effect that the child live with her mother and that she spend time with her father as follows:
·half of school holidays; and
·each alternate weekend from Friday after school until Monday start of school, in intervening weeks from Monday after school to Tuesday start of school and Wednesday after school to Thursday start of school.
The father also sought orders to the effect that:
·the child not to be left alone with her step-father;
·she have telephone contact with him any evening from 4.00 pm to 7.00 pm for up to 10 minutes;
·the mother not change the child’s surname; and
·both parents complete a parenting skills course, and that the mother complete an anger management course.
An order was made on 7 February 2012 for the preparation of a Magellan Report.
On 23 March 2012 the Magellan Report was released.
On 4 July 2012 Dr R, clinical social worker, was appointed as single expert to prepare a report.
On 31 July 2012 the child was referred to paediatrician Dr C who diagnosed her as having attention deficit hyperactivity disorder (“ADHD”).
On 31 August 2012 the sexual assault counsellor Ms T prepared a victim compensation report. She reported that she held grave concerns for the child’s safety and the possibility of further abuse if the child’s time with her father was reinstated.
On 18 December 2012 Ms T wrote to Dr R strongly advocating for the child to have no further contact with her father in order to maintain her safety. She said that during counselling the child had spoken of some of her experiences of sexual abuse by her father.
On 30 December 2012 the child concluded the last of 24 counselling sessions with Ms T.
On 15 February 2013 the Family Report, prepared by Dr R, was released.
Magellan Report
The Magellan Report, completed on 20 March 2012, contained notifications of risk of harm. A notification was substantiated in relation to sexual harm on 12 April 2011. DOCS did not intervene in these proceedings. They made the following arrangements for the child’s safety and wellbeing:
· JIRT applied for an AVO to prevent further contact between the father and the child and a final order was granted, which expired on 25 May 2012.
· DOCS referred the child to Community Health for sexual assault counselling.
· The mother was assessed by a child protection caseworker about her ability to ensure the child’s safety and wellbeing.
Credit
Ms T
Ms T is a senior counsellor with the Z Sexual Assault Service. She was the child’s sexual assault counsellor, the child having been referred to her by JIRT. She has counselled the child for a total of twenty-four sessions between April 2011 and October 2012. Ms T prepared a report about the child dated 31 August 2013. I shall refer to this below.
Ms T gave her evidence in a responsive manner. On many occasions she was able to support her answers by reference to notes taken by her during the counselling sessions.
Despite the father endeavouring to question Ms T’s qualifications and experience, I have no hesitation in accepting these and the reliability of Ms T’s evidence.
The mother
The mother was forthright and responsive in her answers to questions during cross-examination. She was cross-examined over many hours by the father. Many of his questions were irrelevant to the issues before the Court yet the mother showed patience and restraint on almost all occasions.
Where the assertions by the mother and the father conflict, generally I would prefer the mother’s account of events.
The paternal grandmother, Mrs O
Mrs O is the father’s mother. She gave her evidence assisted by an interpreter. The paternal grandmother was responsive and I regard her to be a witness of the truth.
The paternal grandmother said initially that she had never seen the child sleeping in her father’s bed although she agreed that she had seen the child in his bedroom. But subsequently during cross-examination by counsel for the ICL she said that when the child was younger, approximately five years of age, she would sleep next to her father in his room. The paternal grandmother said that this stopped when the child was approximately six years of age.
The paternal grandmother had not had opportunity to have the benefit of considering either the transcript or video of the JIRT interview of the child. Dr R had explained to her in general terms the allegations against her son. The paternal grandmother expressed a strong belief that the father could not possibly have perpetrated the abuse alleged against him.
I would not be able to place much weight on the evidence of the paternal grandmotehr.
Mr S
Mr S is the mother’s husband. He gave his evidence in a responsive, uncomplicated and forthright manner. He was able to maintain his composure despite some obvious but understandable tension when he was being cross-examined by the father.
I regard Mr S to be a witness of the truth.
The maternal grandfather, Mr H
Mr H is the mother’s father. He gave his evidence in a responsive manner. He made concessions.
Clearly the maternal grandfather has a great love for his granddaughter and at one point became quite emotional. But he quickly recovered his composure.
I had no cause to doubt the truth of any part of his evidence and regard his evidence as being reliable.
The father
The father is intelligent and articulate. He gave quite detailed responses to questions. At times he was able to make concessions.
But I am extremely concerned that the father denied that he engaged the child in sexual activity with him. Dr R said in relation to this as follows:
68.It is of concern that [the father] has strongly denied the allegations, despite the strong evidence (victim accounts) which seem to support their truth. On the other hand this is not surprising given the potential for charges being laid against him, with very damaging consequences to his life.
In my view, the father’s denials are not supported by the evidence as will be demonstrated below.
In these circumstances, unfortunately, I have the view that the father is an untruthful witness.
Dr R
Dr R was very responsive to questions from all three cross-examiners. She was forthright and very clear with her answers which she was able to support with what appeared to be sound reasons.
In relation to many challenges to various parts of her evidence she was able to refer to her notes of her interview of the child and indicate the content of her contemporaneous note on the matter.
She was an impressive witness. Where I refer in these Reasons to her observations and opinions I accept such.
Mr HH
Mr HH is the father’s brother.
It quickly became clear that he had not been informed about details of the allegations against the father about sexual abuse. He said that the father had told him that there was an accusation that the father got his daughter to touch him and that it was vague. He indicated that he felt very uncomfortable about this subject and he said that his mind was trying to block it out. He said that his brother was shocked by the accusation. He said that he thought the child might have exaggerated.
He said that he had once shared a bedroom with his brother and could not believe that there could possibly be any truth in the allegation.
In all the circumstances, in my view, the evidence of this witness is unhelpful.
Submissions
The mother
The submissions on behalf of the mother were as follows.
In weighing the primary considerations, the evidence points to the child not being able to have opportunity for a meaningful relationship with her father because it would not be safe for her to do so.
The child’s views were ambiguous. She said that her father was not a bad Dad but he was scary.
The child has a positive relationship with her mother and the mother’s family.
The mother is not able to facilitate a relationship between the child and her father because the mother has the firm view that the father has sexually abused the child. It is clear from Dr R’s evidence that the mother is not vengeful and she has not damaged the child’s relationship with the father.
In relation to the likely effect of the child being separated from her father, both Ms E, Ms T and Dr R have all expressed the view that it would not be in the child’s interests to expose her to the risk involved in spending time with her father.
The mother is a capable parent who has well met the child’s emotional and intellectual needs. The father’s capacity to meet the child’s needs has been compromised by his use of her for his own sexual gratification.
The father’s credibility in alleging that the step-father sexually abused the child was challenged by the father waiting a week before complaining to the police about the alleged behaviour. His assertion that the step-father could have been tempted sexually by a three year old child is alarming.
The child’s Egyptian heritage could be developed by the mother.
The mother has demonstrated an appropriate attitude to parenting responsibilities by her care and support of the child. But the father has failed in his protective responsibility for her.
The evidence does not support the father’s assertion that the mother is violent. There is evidence including issue of the AVO to the effect that the father has been the violent parent.
The orders least likely to cause the parties to return to Court are those sought by the mother.
The father has failed to meet his financial responsibility for the child.
The father presents an unacceptable risk to the child.
The ICL
The submissions on behalf of the ICL were as follows.
The ICL supports the orders sought by the mother.
The evidence is overwhelming that the child would be at an unacceptable risk if orders were made for her to spend time with her father.
The father is an unreliable witness. His allegation against the step-father is troubling. The father’s accounts about this differed.
The child’s accounts about her father’s abuse of her to both JIRT and to Dr R were consistent. The child described so much detail about her father doing “weird wee” on her that this could only have come from experiencing her father ejaculating. The child could not have been coached to described details of the abuse. The child being open to the possibility of spending time with her father is not consistent with the child having been coached.
There were inconsistencies between the evidence of the father and the paternal grandmother about sleeping arrangements.
The Father
The father’s submissions were as follows.
He could make a significant contribution to his daughter’s life. Their relationship had been strong, beneficial and valuable.
The mother, upon deciding to separate from the father, then embarked on a plan to have him removed from the child’s life, which includes replacement of him as the child’s father by the step-father.
The mother changed the child’s surname and the JIRT officer indicated that the child did not know who her real father was.
The mother treated him with violence and inflicted injury on herself to present him in a bad light. The rocking chair incident was playful and the mother used this against him.
The mother did not provide school holiday time with the father.
The father denied that the child had licked or sucked his finger. He said that the child would be safe with him.
The frequency of the mother making complaints about him to DOCS increased after he made the allegation against the step-father and she has made the complaints to endeavour to cover up the step-father’s abuse.
The child was interviewed by JIRT in March 2011 and they determined the father did not present a risk to her and the mother permitted the child to be in her father’s care. Yet the mother then complained to the police which was a set-up.
The child was unable to tell Dr R how many times the father had apparently abused her or the first time it had occurred. Yet on the other hand she was able to present a quite detailed account which indicated that she had been coached.
At one point the child said that the father used a black spray in his alleged behaviour against her. At another time the child said it was a cream. This was an idea implanted in her mind by the mother or a member of her family. The mother gave the child expensive gifts to reward her for things she said against the father. The child would go to great lengths to make up answers to questions in interviews.
The mother and maternal grandfather coached the child to make the allegations against the father.
The Applicable Law in Parenting Proceedings Involving Allegations of Child Sexual Abuse
As I have said above, this case is complex, involving allegations by both parents that the child has been sexually abused.
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of children are met by:
·Ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·Children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
·Children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Sub-section 61DA(1) of the Act provides that when making a parenting order in relation to a child the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Sub-section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The meaning of “substantial and significant time” is set out in s 65DAA(3) of the Act.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.
In parenting cases involving allegations of child sexual abuse the fundamental responsibility of the Court remains that it is to arrive at orders which will serve the best interests of the child or children.
In M v M (1988) FLC 91-979 the High Court said as follows at page 77,080:
… the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the Court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse.
The High Court went on to say at page 77,081 as follows:-
The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access.
The High Court then referred to a “variety of formulations” by courts in their efforts to define the magnitude of the risk. Then the High Court arrived at the relevant test saying as follows, still at page 77,081:
This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
The Full Court of this Court said in the case of B and B (1993) FLC 92-357 as follows at page 79,778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
Allegations of Sexual Abuse
I shall first refer to the allegations by the father, as these were first in time, then refer to those by the mother.
Allegations by the father against the step-father
The father’s allegations are as follows.
On 2 December 2007 he was teaching the child the alphabet. She was fidgeting and having difficulty concentrating so he picked her up and put her on his right knee as they read from an alphabet booklet. The child started well but then began to make mistakes. She then reached with her right hand for his penis and said “what’s this?” She went to grab it as if grabbing a ball. He quickly sat her next to him and couldn’t believe that she did that without any hesitation. It had never happened before. He thought of all the people that she might possibly have spent time alone with and the maternal grandfather and step-father came to his mind. He did not want to overreact but had to ask his daughter “have you seen this part of [Mr S]?” She said “yes”. He asked “Did you touch his private part?”. She said “Yes it’s very hard”. He then asked “what happens when it becomes hard?”. The child then moved both of her arms upwards in front of her and said “whoosh”. He was shocked and upset and didn’t know what to do. He said his first instinct was to educate her so that she would be able to protect herself.
He told her “this part is a rude part and you must not touch it. If [Mr S] shows you his private part again you have to shout as loud as you can, that’s rude, that’s rude”.
When he returned the child to her maternal grandfather after having spent time with her on 9 December 2007 he asked the child’s grandfather not to leave her alone in a room with her step-father. He informed the grandfather that the child had informed him that she had seen her step-father’s private part and that she had touched it. The grandfather went quiet and then avoided the issue. He did not think that the grandfather was taking his expression of concern seriously and he was worried that the child would not be safe because he thought that the grandfather would protect the step-father and put him ahead of the child.
In all these circumstances he was at a loss to know what to do. He decided to call a friend for advice, a woman who had worked as a social worker. She informed him that he should report the matter to the DOCS, which he did. He also reported the matter to the police.
On 16 December 2007 the child said to him “He said he would love to eat the banana. Do you want to eat the banana?”. He asked the child “What’s the banana?”. She then pointed to his private part and she said “I like the banana, yum” as she made a gobbling sound.
The father telephoned DOCS again and informed them of this.
On 20 December 2007 the father took the child for an interview by the JIRT. During the JIRT interview the child did not say anything supportive of the allegations made by the father. The father informed the manager of the child’s childcare centre about his concerns regarding the child’s step-father.
The DOCS records about this matter indicate that DOCS regarded the probability of harm as being unlikely and that the future risk level to the child was low.
The DOCS record of the father’s report on 9 December 2007 of his allegation that the child had seen her step-father’s private part includes the following:
Reporter states that (father said) “I’m worried that they will try and turn this around onto me and say I have done this … if DOCS interview her they might try and say it was me … her mother is violent and weird and the police attacked me before”.
The father expressed the same concern to the police when he reported his concern about the child’s alleged complaint about the step-father. That is, he informed the police that one of the reasons for reporting the alleged abuse to them was that he was concerned that
[I]f the authorities became involved … it would be wise to report the alleged indecent assault to Police in case his ex-wife and/or her family attempted to shift the blame for the alleged indecent assault onto him.
I note also that the police report about the same complaint by the father included the following somewhat extraordinary assertion:
[The father] explained his ex-wife was 9 months pregnant and perhaps [Mr s] (being a male) was tempted by [the father’s] 3 year old daughter as he was currently unable to have sexual relations with his wife due to her being heavily pregnant.
I note that there is no evidence about the alleged behaviour by the child other than the father’s assertions.
I note also that the version of the child’s maternal grandfather, Mr H, about this allegation was different from that of the father. The grandfather said that when the father raised this matter with him, the father said “[The child] told me that your son-in-law assisted her in the bathroom”.
During the father’s cross-examination of the step-father, the latter said that the mother had informed him that the father had a concern that the step-father had assisted the child in the bathroom. Perhaps nothing turns on this different account.
In any event, the step-father said that he had never assisted the child in the bathroom. He said that at the time the father raised this matter, he had never had any experience (with children) to be able to assist anyone in the bathroom. He said that now that he has two sons he has assisted them but if he had a daughter he would not assist her because a girl should be assisted by her mother. He said that the child has always been washed and bathed by her mother since they met. He also said that now the child washes herself.
The step-father also said that the only time that he has spent with the child alone has been when he has collected her from school. But he added that he also collects his son from school. He said that the child has never seen his penis or seen him naked. He conceded during cross-examination by counsel for the ICL that the child might have touched his penis accidentally when they played and that she might have recognised that she had done so.
The step-father also said that he has never had any conversation with the child about “rude parts”, “private parts” or any other part of his body. He said that no police officer or DOCS officer has ever contacted him to discuss any allegations made against him.
The maternal grandfather said that during a conversation the father had with him previous to that when he alleged the step-father had abused the child, the father had indicated that he wanted to ruin the mother’s marriage.
Notwithstanding the seriousness of the matter, the father did not report his concerns to the police for something like six days. The father’s explanation for this delay was that he was shocked and unsure about what to do. He said that he wanted to speak to someone about it, that he wanted to make sure that he was correct and that at the time he had never reported anything to the police.
In any event, after the time spent by the child with her father when she is alleged to have made the complaint to him about her step-father, the father returned the child into the care of her mother notwithstanding his assertions about the child’s complaint. This would appear to be quite inconsistent with the father having a serious concern that to do so might well expose the child to risk of harm.
In my view, the evidence does not support a finding that the step-father presents as any risk to the child.
Allegations by the mother against the father
The mother alleged as follows.
In April 2009 at breakfast the child noticed that her step-father had a band aid on his finger. She said “Does your finger hurt?” The step father said “Not really”. The child then said “That’s good because I don’t have to suck it”.
The mother was stunned by the child’s comment and asked her “Why would you have to suck [the step-father’s] finger?” The child replied “Because [the father] tells me to suck his finger whenever it hurts him. It is disgusting and I don’t like it”. The step-father said “You shouldn’t be doing anything that you feel is disgusting to do”. The mother said “Next time he tells you to do that, say ‘No, I don’t want to’ ”. The child replied “I can’t do that, I can’t say ‘No’ to him”.
The mother’s account of this was confirmed by the step-father.
The mother immediately reported this to DOCS.
I note that the father suffers from a vascular condition in his left hand. This involves some clawing particularly of his little finger. He said that he feels pain in the cold and that he has asked the child to squeeze the tip of his little finger which has eased the pain. He said that he has never asked his daughter to suck or lick his finger. He said that his little finger is so clawed that it is unlikely that anybody would be able to suck his finger.
The father was cross-examined about this and it was pointed out to him that he had heard the mother say that she had sucked on that finger to give him sexual gratification. It was also pointed out to him that he had not suggested to the mother during his cross-examination of her that it would not be possible to suck his finger.
The father said during his cross-examination that somebody must have put the words into the child’s head.
As indicated above, the child was interviewed by JIRT about this matter but they took no further action.
As also indicated above, the child had been seeing a psychologist.
On 18 February 2011 the mother contacted the police and presented a letter from the child’s psychologist expressing concern that the child had referred to having to suck her father’s finger. The mother believed that the finger sucking behaviour was continuing. The police regarded the child to be at risk of harm. A provisional AVO was issued by the police for the protection of the child and her mother. At this time the child was spending overnight time with her father. The police attended the father’s home at approximately 11.00 pm, removed the child and returned her to her mother.
As also indicated above, the child was interviewed by JIRT and it was determined that the child was not at risk in her father’s care. Her time with her father was resumed.
At approximately 8.00 pm on 11 April 2011 the child had just returned from spending time with her father. The mother’s account of what occurred is as follows.
The child asked her mother when she was next going to sleep at her father’s home and her mother said “This Friday”. The child said that she did not wish to sleep there and that she only wanted to go on Mondays after school. The mother started to think that there was something the child was hiding, so she said “Does [the father] still ask you to suck on his finger?” The child said “No, he stopped, but he asks me to do other stuff”. The mother said when the child said this her voice was shaky and that the mother thought the child was going to start to cry. She said “What other stuff?” The child started crying and said “I can’t say, it’s rude.”. She said “I am your Mum and you can tell me anything.”. The child said “I want to tell you but I can’t.”. She said “Why can’t you?”. The child said “Because if I tell you [the father] will know and he’s going to put me in trouble.”. She said “He will not know about it. Please let me know so I can help you.”.
The child said “I don’t understand why. He is a grown up so why doesn’t he do it himself?”. The child was getting very frustrated. She was crying and embarrassed as she was trying to hide her face when she was telling her mother these things. The mother said “Do what himself?” The child said “Mum but it’s not my fault. He’s the one who tells me to do it.” She said “That’s all right I believe you. You can tell me. What does he tell you to do?”. The mother thought the child was really embarrassed and ashamed of herself so she said “If you like you can give me your back and tell me what you want to say.” She said the child turned her back to her and had her hands on her face and said “He tells me to touch it.”. The mother started crying and said “Touch what?” She said “He tells me to touch his noo noo.”. (The mother said noo noo is the word that the child uses for both the penis and vagina.) She said “[Y], so did you see his noo noo?”. The child said “Yes”. The mother’s sister came into the room and saw the mother crying and took the child out of the room. Then the step-father came into the bedroom and she informed him about what the child had said.
A couple of hours later the mother reported what the child had said to the police. The police informed the mother that they would transfer the matter to JIRT.
Ms E from JIRT asked the mother to present the child for interview on 14 April 2011.
On 13 April 2011 the mother was trying to introduce the child to the idea of attending JIRT the following day. The mother said “Remember you asked me not to tell anyone about the rude stuff that [the father] tells you to do?” The child said “But he stopped telling me to do that since I was 7.” The mother said “But are you sure he’s not going to tell you to do it again?” The child said “No, I’m not sure and maybe he will.” The mother said “So I didn’t tell anyone from our family about this but I had a talk with police in order to get help and they have told me they need to hear the story from you.” The child said she was still shy and embarrassed to talk about it with other people. The mother gave her some reassurance. Then the child said “But there is one more annoying thing that I didn’t tell you about.” The mother said “OK and what is that?” The child said “But please don’t cry this time.” The mother said “No I won’t.” The child said “[The father] does wee wee on my underwear.” She said “Does it wet your underwear?” The child said “It goes all the way from my pyjama pants down to my underwear.” But the next morning [the father] tells me to go and change.” She said “So why doesn’t he tell you to go and change straight away?” The child said “It always happens when I’m very sleepy. He only does it when I’m sleepy but he never does it in the morning because he knows that I am fully awake.” The mother said “OK just make sure you go and tell the police about this story as well.”
The JIRT interview
The following day, 14 April 2011, the mother and child attended the JIRT office. They met with case worker Ms E and Detective Senior Constable K. These persons conducted a long interview of the child of approximately one hour 20 minutes duration. The questions were asked by Ms E.
It is unnecessary to reproduce the whole of the interview. It is sufficient to refer to the following inclusions:
Q134 O.K. So [Y], why have you, what have you come to talk to me about today? A Ah, about stuff that my read [sic] dad did to me. … A His, his, he forces me to touch his, the, he forces me to touch his, um, yeah, that one, he forces me to touch his rude part. Q162 Rude part. A Yes. … Q165 What did you and [mum] call it? A Um, we call it Nono. … Q169 So what’s this a picture of? A A boy. Q170 Yeah. So that’s the front and that’s the back. So show me on the boy where’s the Nono? A That. … Q177 … so tell me everything from, you know, the beginning to the end about what happened. A So, yeah, ah, that was when he was in bed … Q178 Ah hmm. A … he forces me to do it and just to touch it and stuff which is annoying. Q179 Ah hmm. A And then he just told me to get this weird spray, black spray to put on it, yuk, and then and there’s something else I want to tell you. Q180 Yep, what’s that? A Just did, he just did a dot like a dot on me like a wee … Q181 Ah, right. A … but before, that was before not like maybe, yeah, that was when he used to … Q182 Ah hmm. A … tell me to touch his rude part. … A … I was with him in the bed, Q186 Ah hmm. A And then he just did, maybe not a dot, maybe something like that, a line or something on me. … A … in the morning he told me to change ‘cause of that and then why is he telling me to change if he already does it, I don’t understand, he’s weird. He’s a grown up and he’s doing that already. Q190 What do you mean, tells you to change? A Like he, he, he tells me to touch his rude part and he does a wee and blah, blah, and he tells at the end when he wakes up and me … … A … like I was already waking up and he keeps on telling me to do it. He woke up, he tells me to change ‘cause why does he tell me to change if he, he did it himself, I don’t understand. Q193 What do you mean like tells you to change. … A Change myself … Q195 Ah hmm. A … because he did a wee on me. … Q311 ... So tell me more about when you went to sleep with your dad. … A … I went there and slept with him. Q313 Yep. A And then I just slept with him like I went, I lied down, he started turning around, he tapped me and just said, “Do this, do this, do this.” Q314 O.K. So what did he mean by do this, what did he say? A He said, like touch his rude part, he said that, that’s it. Q315 So his rude part and then what did you do? A I don’t know, if I didn’t touch it he would scream at me ‘cause he’s actually, he’s kind but he does rude stuff to me like he forces me to do stuff which isn’t like … … A … Like he told me to touch his rude part, he told me just … Q317 What were his exact words? A Um, spit on it. Q318 Spit on it. A For a, he said, he told me sit down and touch it and he actually took up his, he took down like the blanket and then he said spit on it. Q319 Spit on what? A His rude part. … Q387 … And then what, what does he do? A He takes off his pants, that’s all. … Q391 And how do you touch his rude part? A Hold it. Q392 And then what? A I don’t know, hold it tight and the he just … … Q396 And what do you do with your hand? A Hold it like that, normally, like holding a ball. … A He tells me to do it as in, oh, no, he takes off his underwear too. Q407 Ah hmm. So when did he take his underwear off? A He takes off both of them the same time. … Q410 O.K. So when he takes off his pants and underwear, what could you see? A His Nono, his rude part. … Q412 … so on that day, … how many times have you touched his, your dad’s rude part? … A I don’t know how, how many times, but lots, not lots, no, maybe, I think three or four, I don’t know. … Q416 … And how long did you touch his penis, his rude part for? … A Maybe six or seven minutes, I don’t know. Q418 O.K. And his rude part, was it hard, soft or something else? A The skin was, was soft, but it’s like the inside was hard. Q419 What do you mean the inside was hard? A Like the top skin … Q420 Ah hmm. A … was sort [sic] but in the bones like the, it’s hard. Q421 And what could you feel when you touched his rude part? A I could feel, um, I could feel like, do you know skin of the chicken, the normal fat skin … Q422 Ah hmm. A … yeah, like I could feel that. Q423 And what else could you feel? A Hard bones inside like not bones that hard bit. Q424 Ah hmm. And what did your father do? A He just felt it’s good like he, he likes it. Q425 Was he doing anything else that day? A Uh uh but the only thing he did is did a wee on me like … … A Um, when he told me to spit on it, I spit on it as in water, it feels and then he said “Hey, spit on it more, not just that”, and then, and then I went, he got this black cream thing and then he told, he told me to rub it on him. … A … he’s saying it hurts, it hurts so that’s why he tells me to do it, then he wakes up, he says … Q445 What, when he says it hurts, what does he mean, what hurts? A His rude part. … A So he tells me, he ends up telling me to do that, like hold it and stuff. … A So that’s when, when it hurts he tells me to hold it and, and then when he wakes up he says, “Why do you, why do you, why do you let, let it hurt like that?” I’m like, “I didn’t do anything, you, I just came in, I slept and then you end up saying, “Come, come, come”, how is it, how did I hurt you?” … A … I touch it before and then he puts the cream and then I rub it with the cream. … Q465 … tell me more about the wee? A When he wees on me. Q466 What colour, what does it look like? A It looks like, um, it’s not normal week, [sic] it’s weird wee like, … … A Um, it looks like I think, it looks like a bit, it was like soup without the chicken stuff, it’s like, no, not soup, it looks like it has fluff in it or something. Q468 What colour is it? … A Maybe grey and yellow I think. … Q475 O.K. Did you touch it, the wee? A Uh uh. … A I saw it. Q477 On you. A But not this dress. … Q482 Ah hmm. So when does he wee, does he wee when you touch it or does he wee when you spit on it or at what point does he wee? A Um, he, I, I did all of that … Q483 Yep. A … and then, and then he wees … … A … and then he goes like, after five minutes, he gets up. … A And then he ends up saying, “Why are you hurting me like that, why did you make it hurt?” I’m like, “I didn’t do anything.” … Q492 And what happens to your clothes after he wees on them? A He tells me to go change it by the time he makes me food, breakfast. … Q502 So does he wee every time you touch his rude part? A Not every time like I do all of that, I spit, I put cream and then, and then I touch it after all this, do it and then he, and then he wees. … A And then I had like, ah, I had to go wash my hands after all these germs and disgusting, oh, my God. … Q608 O.K. Has it ever happened somewhere else other than his room? A No, it only happens in his room. … Q627 O.K. And how come you’ve told them now? A Because before, he told me not to tell anyone … … A … not my mum, not my auntie no one …
The father’s denial
As indicated above, the father has denied that he acted towards the child in the manner alleged. He suggested that the mother has coached the child to say the things which emerged during the JIRT interview, during the child’s counselling by Ms T and during interview by Dr R as part of the mother’s process of endeavouring to alienate the child from him. In particular, he has said that the child has never touched his penis other than on the occasion in December 2007 when she said she had seen her step-father’s penis.
On 9 January 2012, Ms E, who conducted the JIRT interview, invited the father to meet with her to discuss the allegation that he had sexually abused the child and to provide him with an opportunity to respond. The father denied any abuse and declined to meet with Ms E. Ms E informed the father that she had no reason not to believe the child and that she would be listing him as a person causing harm on the Community Services computer system. She explained that this meant if he wanted to become a foster carer for Community Services he would not be eligible.
Dr R reported at paragraph 26:
When asked about the sexual abuse allegations, [the father] took a black bottle of cologne out of his bag, informing me that its dimensions were seven-and-half inches by two-and-a-half inches. He explained that it was used to spray on [the child’s] ‘itchy bites’, mainly on her arms. He said that his daughter calls this bottle ‘Blackie’. I did not understand the relevance of this information, so asked [the father] what was his understanding of the JIRT findings. He replied that JIRT was saying he got his daughter to masturbate him and ejaculate over her. When asked his reaction to these allegations, he said that at first he did not take it seriously because he took comfort in the truth, but came to understand how serious the allegations are. Then he said he was going to report ‘bits and pieces that will hopefully make sense.’ He returned to the black spray bottle, how his daughter is susceptible to ‘itchy bites’ and how he uses this to relieve the bites.
At paragraph 27:
When asked directly about JIRT’s allegations, [the father] replied that it did not happen, except when [the child] was three and touched his ‘rude part’. At that time he became anxious that [the child] might have been involved in sexual activity with her step-father and she was subsequently interviewed by DOCS. He categorically denied that he had got [the child] to masturbate him. He said that he did not get [the child] to rub cream on him, and that ‘Blackie’ ([the child’s] name for the Black cologne) is a spray not a cream.
The father sent two emails to Dr R at her invitation, following the interview which she said were more structured and coherent than the interview. Dr R said that those expanded on the father’s ideas of the reasons the mother falsely alleged he had sexually assaulted the child, including that she desired to expunge him from the child’s life and replace him by the step-father.
The child’s sexual assault counselling
As indicated above, the child was referred by JIRT to a senior child sexual assault counsellor, Ms T, whom she commenced to see on 29 April 2011. Ms T prepared a Victims Compensation Report dated 31 August 2012 in relation to the child. This report included the following:
[The child] described [the father] as a “bad person” who “does rude stuff” to her. She appeared to be embarrassed when discussing this with me as she asked me to close my eyes while she wrote these sexual assault disclosures on butchers paper. [The child] would then observe my reaction to these written statements. She also disclosed that [the father] “does wees on my undies”. [The child] stated that she viewed “a man and a lady in bed naked kissing” on a computer at [the father’s] house.
Ms T said that the child was upset by what she said her father did and “consistently” said that she was afraid of her father.
Ms T said that the mother attended some of these counselling sessions.
Ms T said that the child had 24 counselling sessions with her. She said that the child first spoke about her “annoying Dad” in mid-August 2011. She said that the child was worried that “the people at Court” would not believe what she was saying.
During the course of the father’s cross-examination of Ms T it became clear that she commenced her counselling of the child from the position that she had been informed that the child had been sexually abused by her father. But Ms T said that the child had said the things referred to above to her during the course of the counselling which contributed to her having the view that the father had abused the child. She agreed with the father that her professional focus was on making sure that the child was safe rather than on “validating” whether the sexual assault had occurred.
In December 2012 Ms T provided answers to various specific questions from Dr R, some of which will be referred to below. Ms T “strongly advocate(d)” for the child not to have any further contact with her father in order to maintain her safety.
Dr R’s evidence concerning the alleged abuse
Dr R’s report included the following paragraphs.
48.When [the child] was asked her idea of what I had come to talk to her about, she answered in a very tentative, halting manner, replying that she guessed it was something about her real Dad and whether she felt nervous about something. When asked to elaborate on that, [the child] said that she feels nervous that she may be ‘going back’ to see her father. [The child] said that she doesn’t mind going back, ‘to try’, but that she feels nervous about it. When asked what she feels nervous about, [the child] replied that her father is ‘a bit scary’ because he ‘tells (her) to do things that maybe you don’t want to do’. She emphasised that he ‘makes’ her do it, and has ‘done that a few times’.
49.[The child] said that he (sic) mother had told her that if she spends time with her father, someone may be able to ‘watch’ her. When asked why someone would need to do that, [the child] replied that in case her father ‘does something cruel’ or ‘wrong’, such as ‘tells (her) to do something that is bad for me.’
50.At this point in the interview, which was becoming difficult for [the child], a play task was set. [The child] was asked to choose small model animals to represent different family members. … [The child] procrastinated about whether she should choose the crocodile for her father. She said that he is ‘not bad, he’s still my father’ but ‘he is definitely not safe’ because he makes her do things that she does not want to do. I asked [the child] to elaborate on that. She explained that sometimes when she stays at her father’s home she gets scared in the night and goes into his bed, because she ‘wants company’ and ‘want(s) to sleep next to someone.’ However she has decided that her father is ‘not someone to be around’ as what he has done is ‘very rude’.
51.[The child] had a great deal of trouble saying the next part of her disclosure. She made three attempts at saying that her father makes her touch his ‘rude part’ and ‘put cream on it’ and made her ‘rub it’. [The child] said that she ‘had to’ and her father ‘told me to do it’. She said that after he has finished, he blames her and asks her why she did it. When I suggested that perhaps it hurts him, [the child] quickly replied that it does not hurt. [The child] said that when her father says these things to her afterwards, she doesn’t say anything and ‘stay(s) quiet’ with her ‘mouth shut’. Later in the interview [the child] asked me, in what impressed as a genuinely puzzled way, why her father would ask her to do this when he could do it himself.
52.[The child] said that her paternal grandmother is at home at the time of these events. She said that her father ‘covers up’ if her grandmother goes into the room, because her father does not want the grandmother to see.
53.When [the child] was asked how many times this had occurred, she replied that she guessed it would be three or four times.
54.After this conversation, [the child] decided to depict her father as an eagle, because the eagle has scary eyes. The black and white eagle also reminded her of her father because the black part represents for her the ‘inside’ of her father’s heart which is ‘dark’ and ‘bad’ and the white part represents the ‘clear’ part of his heart. [The child] feels that her father has a good side, in that sometimes he takes her to school and he also takes her to see her male cousins whom she likes very much.
55.[The child] said that if her father tells her to do something that she does not want to do, he keeps calling her name and she has no choice but to do it. She said that doing something she does not want to do makes her feel ‘nervous’ and ‘makes (her) heart beat a little bit’.
…
60.When [the child] was asked how old she thought she would have to be before she felt safe with her father, she sought clarification for the question, suggesting that I may be asking how old she would have to be before she could tell her father to ‘stop’. [The child] said she thought she could do this when she was ten. She felt she could do it now, but ‘fully’ when she was ten. Then [the child] asked if she could tell me something, that her father had told her not to tell anyone what he does to her. She said that she had been ‘busy’ and did not think to tell, but that ‘after lots of days’ she finally told her mother.
61.[The child] was asked what she would do in the event that her father tried to ‘do rude stuff’ again. She said that her counsellor and she had devised a safety plan, whereby she should ring someone for help. However in explaining this, [the child] became quite confused, and it seemed that in a stressful situation she may be unable to action the safety plan.
Dr R’s evaluation
Dr R’s evaluation concerning the mother’s allegation about sexual abuse was as follows:
62.[The child] is a sociable young girl who is now of an age (nearly nine at the time of interview) when she can communicate clearly. For the past twenty-one months she has consistently revealed that her father engaged in certain specific activities (which an adult knows to be of a sexual nature, and therefore of a sexually abusive nature) with her on occasions when she came into his bed for company during the night. She has made revelations to a number of different people, firstly to her mother and aunt, to JIRT, to her sexual assault counsellor and finally during the family report interview. The details she has disclosed, while not exactly the same in each case, are internally consistent. [The child] gave a very explicit account in the Family Report interview of being asked by her father to rub cream on his penis (termed by both her and [the child] his ‘rude part’). The fact that [the child] spontaneously, and in a spirit of genuine enquiry, asked during interview why he would ask her to do that when he could do it himself, made her account all the more authentic. When [the child] explained that her father seemed displeased with her afterwards, and the suggestion was made by the interviewer that it might hurt, [the child] countered quickly and with great certainty, the information that it did not hurt. This also made her account impress as authentic, coming from her direct expereince [sic]. [The child’s] manner of speaking, her hesitation at first, her obvious embarrassment at the subject matter, and then her clear accounts, impressed as coming directly from her own experience. There was no indication that [the child] had been coached in any way. This assessment finds that [the child] has given an authentic and truthful account of sexual abuse experiences through the lens of a child’s understanding.
63.The specialist sexual assault counsellor, Ms [T], has spent twenty-four sessions with [the child], so it is fair to say she understands the child, her experiences as disclosed, and her developmental stage well. She is well positioned to make a risk assessment. Ms [T’s] assessment is that for [the child] to spend time with her father would put her at unacceptable risk.
64.During the Family Report interview [the child] said that she was willing to ‘try’ spending time with her father, but was nervous about it. She was certainly open to the idea. This indicates that the maternal family has not alienated [the child] against her father, despite their convictions about the abuse and strong negative perceptions about his past behaviour. When questioned about her safety plan, [the child] had some strategies but appeared confused about how to implement them. This assessment finds that [the child] is not yet of an age when she can protect herself.
65.Thus the recommendation is made that [the child] does not spend unsupervised time with her father.
Dr R was asked during cross-examination by counsel for the ICL how she went about the process of determining whether she thought the child’s account was authentic. Dr R said that she considered the child’s demeanour, her affect, the language she was using and whether her story appeared to be coming from the child’s remembered experience or whether it appeared to have been rehearsed. She said that she has been interviewing children for 25 years and had seen them making stories up.
Dr R said that in the case of Y, the child was clearly uncomfortable, embarrassed and reluctant to make her disclosure to her. She said the child’s affect was consistent and her account appeared to be coming from her experience.
Dr R said that although there might have been some inconsistency about dates and the number of occurrences, this could be a function of the child’s age, her experience being that children of the child’s age can become confused about such details. The child had said “three or four times” to different interviewers so Dr R thought the activity had probably occurred on a number of occasions.
Dr R said that she had considered the possibility of other explanations for the child’s account. But she could not identify other explanations. The father suggested alienation of the child by her mother but Dr R did not assess this as being a case involving alienation. She said that this was because the child had indicated that she would be willing to try and spend time with her father. Dr R said that this demonstrated that if there had been an attempt at alienating the child from her father that it had not “filtered through” to the child.
The father, during his cross-examination of Dr R, suggested that the child had made similar allegations against her step-father in 2007, namely that she had seen and touched his private part, that it was hard and that after it became hard she said “whoosh”. Dr R responded that there appeared to be a distinction between what the child told a parent and what she told the authorities. The father went on to inform Dr R that the child had made reference to her step-father’s penis being a banana and the child saying “yum, yum”. Dr R thought that this was somewhat inconsistent because every time the child talked about male genitals she said (it) was “yucky”. The father asked Dr R how she would explain the reference to “whoosh”. Dr R said that if it was true that the child had said this, it would seem to suggest that she had observed some activity of a sexual nature.
The father also suggested to Dr R that she had relied heavily on Ms T’s opinion to form her own opinion. Dr R responded that even in the absence of Ms T’s opinion she would have made the same recommendation but she said that Ms T’s opinion had given her more confidence in her own assessment.
I accept the evidence of the mother, Ms T and Dr R over the father’s denials. In my view the child’s statements to them are consistent with the child’s statements during the JIRT interview. I agree with Dr R that the amount of detail provided by the child and the fact that she has been able to repeat the detail to different specialists with a continuity and consistency appear to give her story authenticity and do not support the father’s suggestion that the child has been coached.
In all these circumstances, I accept that for the child to spend unsupervised time with her father would expose her to an unacceptable risk of sexual abuse.
Would it be in the child’s best interests to spend supervised time, and/or to communicate with, her father?
The best interests considerations are set out in s 60CC of the Act.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.
Sub-section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Ms T, the child’s child sexual assault counsellor, said that the child has consistently spoken of the fear she has of her father and that she remained adamant that she does not wish to see him in the future. Ms T said that the child often described him as her “annoying Dad”, said that she hates him and is scared to go to his house. She also said that the child said that she is unable to say “No” to her father.
As indicated above, Ms T also said that the child is aware of these proceedings and is worried that the Court will not believe her “sexual assault disclosure”.
As also indicated above, Dr R reported that the child told her that she was willing to “try” spending time with her father but that she would be nervous about it.
Dr R assessed Y as being a child who knows her own mind and is not easily influenced.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
Dr R said that the child nominated her mother and maternal grandmother as her favourite people and the people to whom she feels closest. She said that the child next chose her step-father before her brothers and then her father. Dr R said that the child chose a beautiful model white horse to represent her mother because her mother is nice. Dr R also said that the child likes to “hug” her mother and that she perceives herself and her mother as being “very close to each other”.
Dr R said that when the child was told that her step-father would be interviewed next, the child spontaneously said that she does not think of her step-father as her step-father but as “more like my Dad” as he is “kind” to her and “doesn’t do any rude stuff” to her. Dr R said that the child has an excellent relationship with her step-father, who impressed Dr R as a child-focused parent who apparently does not discriminate between the child Y and his two biological children.
I accept that the child’s relationship with her father has become one of nervousness and apprehension on the part of the child.
Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The mother, the step-father and the maternal grandfather all have the view that the father has sexually abused the child. Each of them is therefore opposed to the child spending any time with her father.
The mother said however, that she would not mind if the child spent some time with members of the father’s family. But she said she would have some concerns. This was because she regards the father as a dominant and controlling member of his family and she thinks that he would try to be involved with the child.
The mother said that she did not trust the father’s brother and that she was not on good terms with him. She said that if there was going to be any time spent by the child with members of the father’s family it would have to be at a contact centre.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
The mother said that since the child has not been seeing her father, her behavioural problems have improved significantly. She is no longer defiant, is far less argumentative and no longer displays emotional outbursts. The step-father confirmed this in his affidavit.
Ms T said that if the child was to spend time with her father she would be at risk of further sexual abuse because at her age she does not have the maturity to protect herself. As indicated above, Ms T also thought that if the child was required by court order to see her father she could well feel that she had not been believed by the authorities including this Court and this could have a long term impact upon her. This would include the unlikelihood that the child would have the confidence to disclose any further sexual abuse because she would consider this pointless.
Dr R said that if the child did not spend time with her father she would not be lacking a male role model or a male attachment figure because of her close relationship with her step-father whom she thinks of also as her father.
Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
This consideration is not relevant.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.
The father said that he has a strong interest in teaching, and has been involved in tutoring schoolchildren, tutoring at university, and conducting courses and seminars when he worked at a large multinational company. He said that he believed the biggest contribution he has made and would continue to make to the child’s development is in academic coaching as well as teaching her how to be a good person with good morals. On most occasions when he collected the child after school he took her to the public library where they read and borrowed books. He also assisted her with her homework. He taught the child to ride her bicycle and to swim.
Unfortunately, because of the finding to which I am drawn by the evidence that the father presents as an unacceptable risk in relation to the child, this is a most serious deficiency in his capacity to provide for her needs. In fact, Dr R said that it would assist the child to feel safe, for restraints to be placed on the father attending her school, neighbourhood or home.
On the other hand, Dr R had no concerns about the mother’s parenting capacity. She described the mother as an intelligent, child focused parent who appeared to be doing an excellent job raising three young children. Dr R said the mother was concerned about the safety of her child.
The mother has undertaken the six week Post-separation Parenting Program which has assisted her in managing the child’s difficult behaviour.
Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
As indicated above, Dr R questioned the child about her safety plan and noted that she had some strategies but appeared to be confused about how to implement them. Dr R assessed the child as not yet being at an age when she can protect herself.
The child and her family, including her father, have an Egyptian background. The mother is confident that she can arrange for the child to develop understanding about Egyptian culture and traditions. I accept this.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right.
This consideration is not relevant.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
On the one hand the father professes to be a concerned and responsible parent who is best able to provide for the needs of his daughter. For example previously he had been paying the child’s school fees and associated costs. He had been encouraging her to do exercise and to play sport, and persuaded the mother to enrol the child in gymnastics. He and the child have done all sorts of interesting recreational pursuits including iceskating, rollerskating, tandem bike riding, going to the beach, the farm, the zoo, amusement and theme parks. They have been camel riding and pony riding, climbed trees built sandcastles flown kites and visited friends and relatives.
Yet on the other hand, as I have said, the evidence leads to the conclusion that he has failed to prioritise the child’s needs above his own need for sexual gratification.
Also the father took the child to a psychologist Mr U because he thought the child was being used by her mother to attack him. In circumstances where at the time the child was seeing her own psychologist, for her to be introduced to a stranger whom the father thought might be able to obtain from the child information which might assist the father in his litigation against the mother, was in my view quite inconsistent with acting in the child’s best interests.
The mother has shown herself to be well able to provide for the child’s needs. It is clear that she is a responsible parent, a parent who is most concerned about the safety of the child. She has acted appropriately by seeking the assistance of the police, Departmental officers and therapists in responding to the child’s complaints about sexual abuse.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
It is difficult to determine the extent to which the father has been physically violent to the mother.
Dr R reported at paragraph 24 that:
He [the father] denied he was ever abusive or violent during the marriage. He claimed that in fact [the mother] was the violent one, who would scratch his face until it bled and has thrown heavy objects at him and whipped him with a power cable. He claims that the occasions in which the police were called up were a ‘set up’. He gave detailed descriptions of events in which [the mother] was the aggressor, not him. He agreed that he had tugged her pyjamas ‘jokingly’ resulting in her slipping off a rocking chair while the infant [child] was in her arms. He claimed the mother inflicted injuries on herself, in order to report them to the authorities and make him look responsible.
The mother said that she was constantly emotionally abused and put down by the father. She was supported in these assertions by her father.
The mother also alleges that there were various incidents of physical abuse perpetrated against her by the father.
It is clear that the police visited the parties’ home in the early hours of 13 April 2005 at the request of the mother. The father said that when he arrived home on that occasion he found that the locks on the front gates had been changed. He said that he went through the rear gate and entered the home. He said that he asked the mother why she had changed the locks and that she started to scream. He said that she grabbed his shirt and they both fell off the bed and onto the floor.
The previous evening the parties had an argument when the father had just been able to put the child to sleep and the mother insisted on trying to feed her a bottle of milk. The father alleges that the mother commenced to punch him and that after some time he restrained her.
The police record of the event records the mother as having said that the father pushed her into a wall. The record refers to the mother as having declined to make a statement and as having informed the police that she really wanted a report because she had been to Centrelink that day and had been informed that Centrelink would not recognise a separation under the same roof without some good reason for the separation. The police did not take any action because they could not determine which party was the aggressor and also because they believed the mother might have been using the police to further her interests with Centrelink.
On 26 July 2005 the mother made a statement to police alleging that during the argument between the parties on 12 April 2005, the father had grabbed her, slapped her on her buttocks and pushed her including causing her to fall on to the bedside table causing a bruise to her forehead which he minimised by placing an icepack on the bruise with force.
The mother’s statement also included a reference to the incident on 13 April 2005 after which the police attended. The mother said that the father terrified her by breaking through a door which she had nailed fast and by shouting. The mother said that the father pulled her ear hard, grabbed her hair and dragged her out of bed so that she fell onto the floor. She said that he slammed her against the wall, hit her head against the bedroom wall approximately three or four times and continued hitting her.
When the police attended they noticed a bruise on the mother’s upper left arm but thought that this was consistent with the father’s account that he had to restrain the mother who was punching him.
The mother attended at A Hospital on the evening of 15 April 2005 and was examined by Dr V. The mother alleged that she had been assaulted by the father three days earlier by him pulling her arms, pushing her against a wall and throwing her to the floor. The relevant report said that there was no previous history of physical assault. Dr V noted tenderness above the mother’s right eyebrow with no swelling or bruising, tenderness along the mandible but no bruising/deformity and tenderness along the thoracic spine with no bruising. It was also noted that the mother had three day old bruising to the left upper arm and a small bruise to her left forearm.
Incident on 30 June 2005 – The Final Separation
The account of this incident as contained in the New South Wales Police records includes the following:
On Thursday, 30 June 2005 at approximately 12.30 am the mother was asleep in bed. The father has got into bed and woke the mother to initiate sexual relations. The mother at this stage has refused to engage in sexual relations with the father and has said no to sex. The father has then continued to ask for sex, and has commenced to cuddle and kiss the mother. After the mother has told the father several more times that she did not want to have sex, she has got out of bed and stated that she was going to the toilet. The mother has then locked herself inside her daughter’s room in an attempt to get away from the father’s sexual advances. A short time later, the father has approached the locked bedroom and commenced to bang on the door, demanding that he be let in to have sex. After the mother has refused to open the door, the father has forced the door open by kicking it several times. At this stage, the mother was inside the bedroom sitting on a rocking chair with her daughter in her arms. The father and the mother have once again become involved in a heated argument over the mother’s refusal to have sex. As a result of this, the father has approached the mother and attempted to pull her pants down whilst she was seated on the rocking chair. As a result, the mother has fallen off the chair and landed on the floor, whilst the child was still in her arms. The father has then left the bedroom. The mother has then got up and called for police assistance. Police arrived a short time later and had a conversation with the mother. As a result, the father was placed under arrest and cautioned. … (The father was then taken to [the] police station). During his (police) interview the father made full admissions to pulling his wife off the rocking (chair) in an attempt to pull her pants off. The father also stated that when he tried to pull her pants off he was doing it in an attempt to have sex with her, and that he thought it would get her in the mood. The father stated that he believes that when his wife says “no” to sex, she really means “yes”. … As a result of the mother being pulled off the chair, she received slight soreness to her bottom area.
Unsurprisingly, the mother’s account in her affidavit was similar to this. It was as follows.
On 30 June 2005 at approximately 12.30 am she was asleep. The father came to bed and woke her up saying that he wanted sex and she declined this. The parties began to argue about this. The father grabbed hold of her and started to embrace her as if he was about to have sex. She felt uncomfortable. In order to get away from him she said she needed to go to the bathroom. Instead she went and locked herself in the child’s room.
After a while the father knocked on the daughter’s door and said “Open the door”. The mother refused and he started to rattle the door. She said “The baby’s asleep. Don’t try and wake her”.
The mother was sitting on the rocking chair. The father banged on the door until he broke it open. He picked up the child and gave her to the mother. The mother was sitting on the rocking chair trying to rock the child to sleep.
The parties again started to argue with the father demanding that she give him sex and she was still declining. The father grabbed her by both legs and pulled her towards him forcing her to fall on the floor while holding the baby. The father then left the room and the mother called the police. When the father was breaking through the door and when he pulled the mother off the rocking chair she was scared that he was going to seriously hurt her.
The father’s account is somewhat different from the police record and the mother’s account. In his affidavit he said as follows:
On 30th June 2005, I was jokingly tugging at the mother’s pyjama pants when she was sitting on a rocking chair. The mother slid off the edge of the rocking chair and ended up in a seated position on the floor. I then tried to help her up but the mother slapped my hand away. I then left the room. A short time later, three police cars had parked outside the house and six police officers entered the house. I was then arrested for common assault, put into the back of a paddy wagon and taken to [the] police station. I admitted that I had caused the mother to end up in a seated position on the floor but argue that no malice was intended and that it was an accident. I was then charged for common assault. …
The father agreed that the parties never reconciled after this occasion and said that it marked their separation.
The father said during his cross-examination that the police record of him having made admissions about the rocking chair incident was incorrect.
As indicated above the father has pleaded guilty to the charge of common assault by him against the mother which arose out of the above incident which precipitated the parties’ final separation in June 2005. Given the much more favourable opinion I have about the mother’s credit compared with that of the father, and in the circumstances that the father pleaded guilty to the incident as constituting common assault by him against the mother, in my view it is appropriate to find that the father has perpetrated physical violence against the mother.
On the other hand, the father said that the child had told him many times that her mother hit her sometimes with her hand and sometimes with a wooden spoon when she was naughty. The father also said that when he took the child to the psychologist Mr U, the child informed Mr U that her mother “is bad”, that she hits her with her hand on her face and has used a wooden spoon to hit her on her back and bottom.
The father said that on 2 April 2005 the mother had stood over him holding a power cable in her hand while he was sitting on the couch watching television. He said she demanded that he prove that he broke up with a girl that he had supposedly met when overseas. He said that he said “There is no girl overseas”. He said the mother screamed “liar” and whipped him with the power cable on his right thigh. He said that some minutes later the mother said to him “I felt better after I hit you and I would do it again”.
The father also said that on 4 April 2005 he was doing some work on his laptop computer. He said that the mother entered the room, snatched the laptop from his lap and threw it hard against the ground. He said that the laptop was significantly damaged and stopped working.
In relation to the father’s allegations against the mother, the step-father said that he had seen the mother to have been angry but had never noticed her to be aggressive or violent.
The stepfather conceded that he (the step-father) had smacked the child on her hand a few times.
As I have said, it is difficult to be clear about the actual extent of domestic violence between these parties. It is clear that the father has perpetrated violence on the mother. On the other hand, I cannot completely discount the possibility that the mother has been violent in some way to the father.
Sub-section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;
I am not clear about whether there is a current AVO in operation.
Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
These parties have been litigating over many years. One can only hope that now that they have had this opportunity for the various allegations to be ventilated and the relevant evidence tested, this will be the end of litigation between them.
It is far from clear to me that any particular order would be least likely to lead to further proceedings.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The father has not worked for some years now despite having previously operated a business apparently quite successfully.
He is his mother’s carer. She takes the medication epilem, as well as risperidone which I understand is prescribed to manage schizophrenia and symptoms of bipolar disorder. His income consists of a government benefit. He has been assessed to pay only a very modest amount of child support which, in any event, I understand is in arrears.
The child is supported by her step-father. Her mother does not work.
Meaningful Relationship
I return to consider the primary considerations. It is clear that the child has had a meaningful relationship with her father including up to the time when her time spent with him ceased in April 2011. The benefit to her in being able to continue to develop her meaningful relationship with him has to be weighed against the second of the primary considerations as well as the other relevant considerations. As indicated above, the second primary consideration is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse or family violence.
As I have said, in my view, the evidence leads to the conclusion that for the child to spend unsupervised time with her father would expose her to an unacceptable risk of sexual abuse. Would it be possible to put in place some safeguards which would mitigate the risk to an acceptable level in order for the child to be able to have some opportunity to have a relationship with her father?
In this regard the only possibility would appear to be some level of supervision. I shall return to this after considering the possibility of the child spending some time with members of the paternal family.
Contact with the Paternal Family
Dr R said in her report that it would be in the child’s best interests to resume her relationship with the paternal family, especially if the Court declined to order time between the child and her father. During her cross- examination, however, Dr R said that if it became clear that the paternal family members have the view that there is no substance to the allegation of sexual abuse, then she would not support communication or time spent between the child and them. She said that this was because firstly, the child’s safety with them could not be guaranteed and secondly, because of what she described as a psychological concern. This was that the paternal family members might say things in the presence of the child in defence of the father which might make the child feel sad, confused and guilty.
It became quite clear during the cross-examination of both the paternal grandmother and the paternal uncle that neither of them consider there to be any possibility of any truth in the allegation of sexual abuse. The grandmother did not believe this could have occurred because she lives with the father all the time. She thinks that either the mother or someone in the mother’s family has taught the child to say the things that she has said.
The paternal uncle said in effect that he finds the allegation against his brother so abhorrent and unlikely that he just blocks it out of his mind. He continues to entrust the care of his two young sons to the father despite knowing about the allegation.
I must say I am far from persuaded that it would be in the interests of the child to spend time, or communicate, with members of the paternal family. Neither the paternal grandmother nor the paternal uncle have bothered to read the JIRT interview of the child or most of the other available evidence relevant to the allegation. They appear to hold steadfastly to the view that the father could not possibly have engaged the child in inappropriate activity.
In these circumstances, in my view, this Court could not have confidence that they have the balance and objectivity required to ensure that the child would not be exposed to inappropriate discussion about matters related to the issue of the abuse and there is a risk that because the family members have this view they might not be able to protect the child from her father.
In my view, it would not be appropriate for any of the members of the paternal family to provide supervision. This is because of the apparent steadfast disinclination of the father’s mother and brother to accept any possibility that the father has abused the child. It is also because of concern about the possibility of psychological harm to the child as referred to by Dr R.
This leaves for consideration whether it would be in the child’s best interests to spend time with her father at a supervised contact centre.
In this regard Dr R said as follows:
66.The question then arises as to whether [the child] should spend some supervised time with her father in a centre, or whether the time she spends with her father should be suspended. The father claims that he and [the child] have fun together, as evidenced by his photos and videos, and that [the child] has a good relationship with him. While [the child] does have misgivings about her father, and is sometimes intimidated by him, she also had fun times with him when they were together. [The father] wants to be able to help her with her homework. Spending time with him in a children’s contact centre would maintain their relationship until [the child] becomes old enough to (in her words) “tell him to stop”.
67.On the other hand it should be noted that the sexual assault counsellor has categorically stated that, in her view, [the child] should not spend time with her father. [The child] has an excellent relationship with her step-father who impressed as a child-focussed parent who apparently does not discriminate between [the child] and his two biological children. [The child] spontaneously told me that she thinks of Mr [S] also as her father. If [the child] did not spend time with her biological father, she would not be lacking a male role model or a male attachment figure.
Some time spent between the child and her father at a supervised contact centre would provide some opportunity for her to know that her father still exists and also a very limited opportunity for them to have some interchange within the confines of the centre. But such would not be opportunity for the child to have any meaningful relationship with her father.
Both the mother and Ms T have said that the child has been less anxious and that her challenging behaviour has settled since she has not been spending time with her father. As Dr R has said, at times the child has expressed anxiety about being “snatched” by her father.
Upon weighing the possible modest benefit to the child in having some limited opportunity for time with her father at a supervised contact centre against the matters referred to above, as well as the ongoing logistics involved, the poor relationship between the parents, the fact that the mother and step-father would be unlikely to be committed to the child spending even limited supervised time with her father, particularly in light of this Court’s finding on abuse, and on the basis that the ICL does not support such, in my view, it would not be in the child’s interests to make any order for time to be spent by her with her father.
I have the same view in relation to any order for direct communication between the child and her father.
Parental Responsibility
Parental responsibility is defined by s 61B of the Family Law Act 1975 (Cth) (“the Act”) to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the child’s best interests for her parents to have equal shared parental responsibility for her. The presumption does not apply if there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
In my view, unfortunately, in this case both of these characteristics apply. Accordingly, the presumption does not apply. The question which then arises is whether it is in the child’s interests for her mother to have sole parental responsibility for her.
Dr R has recommended that the mother have the sole parental responsibility for the child. As I have indicated, there will not be an order for there to be any time spent, or communication, between the child and her father. The parents have a very poor relationship and have shown themselves over many years to have had great difficulty cooperating about parenting matters. In addition Dr R has said that the mother does not wish the father to know her current address for fear of intimidation. As I have also said the father has demonstrated that he has not been able to prioritise the child’s needs above his own and that he has shown serious parental deficiency.
In these circumstances, in my view, it is in the child’s best interests for her mother to have the sole parental responsibility for her.
Change of Surname
As indicated above, the father has sought an order to ensure that the child is known by the surname “H…”.
The mother said that she has never attempted to change the child’s name. I note that the child’s Student Record produced by the New South Wales Department of Education and Training contained her surname in many places and that it was alternatively spelt “H…”.
On the other hand, as was submitted by the father, in the enrolment application form for the child’s enrolment at L School her surname is spelt both “H…” and “H…”.
In my view, it would be in the child’s interests, particularly to avoid any confusion, for an order to be made to ensure that her surname at birth, namely “Hassam”, continues to be used in relation to her.
Restraints
The orders will include some restraints on the father.
The maternal grandfather, Mr H said that he had seen the father’s car parked opposite the child’s residence in March 2012. This was notwithstanding the existence at the time of the AVO which had issued in May 2011 for 12 months, amongst the restraints of which was a requirement for the father not to come within 200 metres of the child’s home.
During the week before the hearing the father attended at the child’s school. His explanation for doing so was that it was necessary for him to serve a subpoena on the Principal in relation to these proceedings. He said that he deliberately attended the school after school hours.
It is clear that the child saw her father at the school on that occasion. Her mother said the child was fearful that her father might remove her from the school. In these circumstances, in my view it would be in the child’s interests for an order to be made to ensure there would not be a repetition of such behaviour by the father.
Costs
Counsel for the ICL indicated that the ICL’s costs were $14 211. He sought an order that the parents pay such costs in equal shares.
It was submitted on behalf of the mother that she is not employed and relies on the step-father for the support of herself, the child Y and their sons. It was submitted that she is not in a position to make any contribution to payment of legal costs.
The father submitted that he is unemployed and would only be able to make a modest contribution. The father subsequently sent an email message to my Associate indicating that he would be able to contribute up to $2000 to the ICL’s legal costs. He said that he thought it fair that he contribute something.
In all the circumstances I am satisfied that the mother does not have the capacity to pay any legal costs and that it is appropriate that the father pay the sum of $2000 towards the legal costs of the ICL.
I certify that the preceding three hundred and eight (308) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 12 September 2014.
Associate:
Date: 12 September 2014
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Costs
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Injunction
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Jurisdiction
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Remedies
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